1. The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of a couple/intending purchaser against a partnership construction firm and its two partners on the allegation of deficiency of services in a dispute of housing construction.2. Succinctly put, complainants’ case is that on 22.8.2016 they entered into an agreement with OP No. 1 construction firm represented by OP Nos. 2 and 3 to purchase one self-contained residential flat measuring about 1,750 sq. ft. super built up area on the 3rd floor in Block-A and one open car parking space under the roof together with undivided proportionate share or interest of land and building lying and situated at premises No. 237, NSC Bose Road, P.S.-Jadavpur (now-Netaji Nagar), Kolkata- 700047, Dist. South 24 Parganas within the local limits of ward No. 100 of Kolkata Municipal Corporation (KMC) at a total consideration of Rs. 70,00,000. The complainants have stated that they have already paid Rs. 45,00,000 as part consideration amount towards the said total consideration amount. The complainants have also stated that as per terms of the agreement the OPs were under obligation to handover the subject flat and car parking space within 12 months from the date of signing of the agreement. The complainants have alleged that time and again they requested the OPs to deliver possession after receipt of balance consideration amount but all their requests and persuasions including the demand notice dated 18.12.2018 turned a deaf ear. Hence, the complainants have lodged the complaint with prayer for following reliefs, viz.—(a) to direct the Opposite Parties to refund Rs. 45,00,000 along with interest thereon @ 12% p.a. from the date of agreement i.e. from 22.8.2016 to the actual date of payment; (b) to direct the Opposite Parties to pay compensation of Rs. 10,00,000 for harassment and mental agony; (c) to direct the Opposite Parties to pay litigation costs of Rs. 1,00,000 etc.3. Despite service of notice upon the Opposite Parties on 12.9.2019 either they have appeared or they have filed written version. Under compulsion, the complaint was heard ex parte.4. In support of their case, complainant No. 2 -Sri Prasenjit Sarkar has tendered evidence through affidavit. Besides the same, the complainants have relied upon several documents including (1) copy of agreement for sale dated 22.8.2016; (2) money receipts showing payment of Rs. 45,00,000 on differed dates; (3) legal notice dated 18.12.2018.5. The overwhelming evidence on record make it quite clear that Opposite Party No. 1 is a partnership construction firm and OP Nos. 2 and 3 are partners of OP No. 1 partnership firm. On 22.8.2016 the complainants had entered into an agreement with the OPs to purchase one self-contained residential flat measuring about 1,750 sq. ft. super built up area on the 3rd floor in Block-A and one open car parking space under the roof together with undivided proportionate share or interest of land and building lying and situated at premises No. 237, NSC Bose Road, P.S.- Jadavpur (now- Netaji Nagar), Kolkata- 700047, Dist-South 24 Parganas within the local limits of ward No. 100 of Kolkata Municipal Corporation (KMC) at a total consideration of Rs. 70,00,000. The evidence on record clearly speaks that the complainants have already paid Rs. 45,00,000 as part consideration amount towards the said total consideration amount.6. In Clause 3 of the agreement for sale it was stipulated that the developer will handover the vacant complete flat and open car parking space within 12 months from the date of execution of the agreement. The agreement for sale was executed on 22.8.2016. Therefore, in all fairness, the OP No. 1/developer should have handed over the flat and the car parking space, as agreed upon, to the complainants within August 2017.7. Evidently, the OP No. 1 has failed to keep their promise in handing over the flat or car parking space within the stipulated period. Finding no other alternative, the complainants have made prayer for refund of the amount of Rs. 45,00,000 and in this regard, they also issued a legal notice upon the OP Nos. 1 to 3 on 18.12.2018 asking them to refund of Rs. 45,00,000 along with statutory interest as per existing statute along with compensation within 3 weeks from date. By one e-mail dated 21.6.2019 the OPs sought for time for further three years six months (3) for Block-A in which the complainants intended to purchase the flat.8. The fact remains that even after expiry of about 4 years the Opposite Parties could not construct the building and in such a situation the complainants, who are in need of their own home, cannot wait for an indefinite period. In a decision reported in II (2018) CPJ 1 (SC)=III (2018) SLT 556=(2018) 5 SCC 442, Fortune Infrastructure v. Trevor D’Lima, while discussing on the issue, the Hon’ble Apex Court in paragraph 15 of the said decision has observed:“15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery of period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e. the possession was required to be given by last quarter of 2014. Further, there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draws us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered........”9. I also find it fit to place reliance on the judgment of the Hon’ble Supreme Court reported in II (2019) CPJ 29 (SC)=III (2019) SLT 631, Kolkata West International City Pvt. Ltd. v. Devasish Rudra, in which the Court has observed as hereunder:“........It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement, even according to the developer, the completion certificate was received on 29th March, 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to not-suit the buyer merely on the basis of the fist prayer in the reliefs sought before the SCDRC. There was in any even a prayer for refund.In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified.”10. The evidence led by the complainants remained unchallenged. Therefore, there is hardly any reason to disbelieve the contention of the complainants. In II (2015) CPJ 568 (NC), Emmar MGF Land Limited and Others v. Amit Puri, the Hon’ble National Commission has laid down that: after the promised date of delivery, it is the discretion of the complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, it is held that it is well within the complainant’s right to seek for refund of the principal amount with interest and compensation as construction is still not complete.11. On evaluation on materials on record and applying the principles of law laid down in above referred cases and having heard the learned Advocate appearing for the parties it appears that the complainant being ‘consumer’ as defined in Section 2(1) (d) of the hired services of OP on consideration in a housing construction and OP has failed to fulfil his part of obligations and found deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainant is entitled to some relief, more particularly, when the Opposite Party has constructed the building by violating the sanctioned plan and has caused unnecessary delay for long seven years in handing over the possession. There is hardly any chance on the part of complainant in getting flat in near future. Therefore, an order of refund of money should be passed in order to enable the complainant to purchase another flat in the same locality from some other developer/builder which will meet the ends of justice. Therefore, the complainant is entitled to refund of the amount of Rs. 45,00,000.12. So far as compensation is concerned, considering the principles o
Please Login To View The Full Judgment!
f law laid down by the Hon’ble Supreme Court in the case of Kolkata West International City Pvt. Ltd. (supra), I think, compensation in the form of simple interest @ 9% p.a. from the date of each payment till its realisation will meet the ends of justice. Under compelling circumstances, complainant has to lodge the complaint for which he is entitled to litigation costs which I quantify at Rs. 20,000.13. With the above discussions, the complaint is allowed on contest with the following directions:(i) The Opposite Parties are jointly and/or severally directed to refund the amount of Rs. 45,00,000 along with compensation in the form of simple interest thereon @ 9% p.a. in favour of the complainants from the date of each payment till its realisation;(ii) The Opposite Parties are jointly and/or severally directed to pay Rs. 20,000 to the complainants as costs of litigation;(iii) The above payments should be made within 45 days from date in terms of the above order.